Monthly Archives: February 2012

This is the second post in our series on how common superpowers might be used to make money in the short term. Our first post was about insider trading, and today we discuss the arguably related field of gambling. First a little legal background, then we’ll get to the powers.

I. The Law

Throughout this post we refer only to legal gambling; obviously illegal gambling is against the law, and moreover the courts will generally not enforce an illegal gambling contract. See, e.g., McConnell v. Com. Pictures Corp., 7 N.Y.2d 465 (1960) (“It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose.”)

There are several ways in which cheating can run afoul of the law. First, winnings “earned” via cheating have been held in some jurisdictions to be unenforceable (i.e. the losing party can recover their loss from the winner). See, e.g., Berman v. Riverside Casino Corp., 323 F.2d 977 (9th Cir. 1963). Second, states that have legalized gambling have also enacted laws criminalizing cheating. See, e.g., Nev. Rev. Stat. §§ 465.070, 465.083. We’ll mostly focus on Nevada law, since it has a well-developed body of law regarding gambling and cheating (no surprise there!).

II. The Powers

There are several powers that could be used to facilitate gambling, including telepathy, empathy, X-ray vision, superhuman speed or dexterity, precognition, eidetic memory, time-travel, and outright probability manipulation. The question is, which of these, if any, could be legal to use? We’ll start with what may be the only power that is actually legal to use.

A. Eidetic Memory

Eidetic memory would be of great use to a card counter. Card counting has been held to be skillful play, not cheating, and a casino that allows a card counter to play must pay the player his or her winnings absent some other fraud. Chen v. Nevada State Gaming Control Board, 116 Nev. 282 (2000) (en banc). On the other hand, no one has a right or property interest in gambling at a particular casino, and a casino can bar a suspected card counter from playing. Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000). Given that even a perfect card counter will require a hefty bank roll and a long stretch of play in order to realize a significant advantage, this approach, while legal, is far from a guaranteed thing.

B. Empathy

Empathy is where we begin to enter a grey area. Arguably, reading someone’s emotions is akin to finding a gambler’s tells, and empathy is simply a more precise, direct way than, e.g., looking for facial cues or nervous tics. Depending on how the power works, it might run into invasion of privacy problems, but some versions of the power (e.g. pheromone detection) likely wouldn’t as they make use of “broadcast” signals. There is enough uncertainty left in reading an opponent’s emotions that it couldn’t be construed as knowing the outcome of the game, which sets empathy apart from many other powers.

C. Precognition and Time-Travel

Precognition and time-travel are, alas, probably a fraudulent act within Nev. Rev. Stat. § 465.070(5), which prohibits, “[placing] or [increasing] a bet after acquiring knowledge of the outcome of the game or other event which is the subject of the bet, including past-posting and pressing bets.”

Now, the real crux of the matter is the meaning of the word “after.” A precog clearly places a bet “after” acquiring knowledge of the outcome, but the issue is less clear for a time-traveler.

Suppose the time traveler leaves the present (t1) and goes to the future (t2) to learn the outcome of the game, then returns to the past (t0, even earlier than t1) to place the bet. Has the time-traveler placed the bet “after” acquiring knowledge of the outcome? Common sense says yes: from the perspective of the time-traveler, the bet was placed after the outcome was known. The time-traveler could make the argument that, objectively, the bet was placed before the outcome was known, but believe it or not that level of semantic hair-splitting is frowned upon by judges.

Of course, as with Biff Tannen’s scheme in Back to the Future, Part II, proving that someone is cheating by traveling through time is a tough sell unless time-travelers are well-known to exist.

D. Telepathy and X-ray Vision

Telepathy and X-ray vision are where we really cross the line into cheating because these powers violate the rules of the game. There’s no meaningful distinction between peeking over a player’s shoulder and using X-ray vision to look at their hand, and telepathy presents similar problems as well as invasion of privacy issues. This may well fall under Nev. Rev. Stat. § 465.083, which simply makes it unlawful for any person to cheat at any gambling game. Somewhat surprisingly, this law has been held not to be unconstitutionally vague, as we’ll discuss in more detail in a moment.

Failing that, these powers also likely fall under § 465.070(2), which prohibits “[placing], [increasing] or [decreasing] a bet or … [determining] the course of play after acquiring knowledge, not available to all players, of the outcome of the game or any event that affects the outcome of the game or which is the subject of the bet.” In most games, reading an opponent’s mind or viewing their hand is a great example of “acquiring knowledge, not available to all players, … that affects the outcome of the game.”

E. Superhuman Speed or Dexterity, Probability Manipulation

Superhuman speed or dexterity could be used in games like craps, either to place the dice in a particular position after rolling them or to roll them such that they are guaranteed to end up in a particular position. There are actually cases that deal with these tactics, which hold that they are a form of illegal cheating. Skipper v. State, 110 Nev. 1031 (1994) (holding that law criminalizing cheating was not unconstitutionally vague as applied to “dice sliding” in craps).

Those same cases would also appear to apply to probability manipulation. “A skilled dice slider such as [the defendant], surreptitiously and contrary to the rules of the game, alters the probable outcome of a throw and drastically increases the chancesof winning certain types of bets on the craps table.” Skipper, 110 Nev. at 1035 (emphasis added). Even though someone who manipulates probability may not even touch the dice (instead betting on someone else’s throw) or may play a game like roulette, the same logic would seem to apply.

III. Conclusion

There do not seem to be very many superpowers that could be used to legally and efficiently make money via gambling. Many of these methods are hard to prove (e.g. precognition, time-travel), but they are nonetheless probably illegal. Of course, many superpowers could be used to win bets of an altogether different kind, for example Wolverine betting on himself in boxing matches in X-Men, but it’s hard to make really serious money that way without arousing suspicion: eventually people catch on that betting against you is a bad idea. It may actually be easier for a superhero to make money legally via the stock market than via gambling.

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We’ve written previously about Superman’s U.S. citizenship (and his brief flirtation with renouncing it), but he isn’t the only superhero with potential citizenship issues. Believe it or not, Aquaman has troubles of his own, even if they aren’t addressed explicitly in the comics. As astute reader Frank asked, “[DC New 52] Aquaman is half-American, on his father’s side. As a citizen, can he hold a title of nobility, namely “King of Atlantis,” in a foreign country?” As the question implies, there are two issues here: Can Aquaman be King of Atlantis while remaining a U.S. citizen? And can a U.S. citizen hold a foreign title of nobility?

I. Renunciation

As discussed previously, 8 U.S.C. § 1481 provides several ways in which someone can lose their U.S. citizenship, if they are done “with the intention of relinquishing United States nationality.” In Aquaman’s case, subsection (a)(4)(A) is the most likely route to renunciation:

accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state

Since Aquaman is an Atlantean citizen, assuming the office of King of Atlantis would seem to be sufficient. Strictly speaking, he would also have to do so with the intention of relinquishing United States nationality, but intent can be inferred from actions. Perkins v. Elg, 99 F.2d 408, 412 (D.C. Cir. 1938) (“expatriation is a matter of intent on the part of the person concerned, which intent must be shown by some express act or some other act from which it can be gathered”). In fact, the State Department considers accepting a policy-level position in a foreign government to be prima facie evidence of intent to relinquish citizenship. The fact that Aquaman remains a citizen of Atlantis means that he is not at risk of becoming stateless, which is one of the major policy reasons prohibiting the involuntary imposition of expatriation. Tropp v. Dulles, 356 U.S. 86 (1958).

Notably, Aquaman later abdicated the throne to be a full-time superhero based in Boston. Could this abdication signal that he never intended to relinquish his American citizenship? Probably not. “After an American citizen has performed an overt act which spells expatriation under the wording of the statute he cannot preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act.” Grassi v. Acheson, 101 F.Supp. 431, 432 (D.D.C. 1951); see also Terrazas v. Muskie, 494 F.Supp. 1017, 1020 (N.D.Ill. 1980) (“plaintiff’s struggle to retain his citizenship is likely evidence of his realization of the gravity of his earlier decision to relinquish his citizenship”).

So is there any hope for Aquaman? There is a slim thread. Any doubts or ambiguities in these kinds of cases must be resolved in favor of retaining citizenship. Dulles v. Katamoto, 256 F.2d 545, 548 (9th Cir. 1958) (“in construing § 401(d) as to such a dual national … the facts and the law should be construed as far as reasonably possible in favor of the citizen.”); Nishikawa v. Dulles, 356 U.S. 129, 133 (1958) (“when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence”). Unfortunately for him, the only issue is whether Aquaman intended to relinquish his citizenship: the fact that he voluntarily assumed the throne of Atlantis is established beyond doubt.

II. Titles of Nobility

The Title of Nobility Clause of the U.S. Constitution forbids both the federal government and the states from granting titles of nobility. U.S. Const. art. 1 § 9 cl. 8; U.S. Const. art. 1 § 10 cl. 1. Furthermore, “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” But these clauses do not prohibit private citizens from holding such titles, so Aquaman is in the clear in that regard. He could hold a title of nobility as long as he did not “accept, serve in, or perform the duties of any office, post, or employment under the government of” Atlantis.

By the by, the reason why U.S. citizens are granted honorary knighthoods rather than proper ones (e.g. Bill Gates, who is a KBE but may not use the title “Sir”) is not because of the Title of Nobility Clause but rather because proper knighthoods are only granted to British subjects.

There is a proposed constitutional amendment to prohibit private citizens from holding titles of nobility, on pain of expatriation, but it has not been ratified by three-fourths of the states. Interestingly, the twelve ratifications it has received so far still “count,” and so if 28 more states ratified it then it would become part of the Constitution. Such a long period between proposal and adoption is not unheard of: The Twenty-Seventh (and currently last) Amendment was adopted 203 years after its proposal in 1788.

III. Conclusion

Once again Aquaman has been overshadowed by better-known superheroes, even when it comes to fictional legal troubles. Where was the Fox News outrage that the former King of Atlantis was allowed to roam the streets of Boston without being deported? Where are the Republican candidates on this issue? Superman merely threatened to renounce his citizenship in a non-canon side-story, whereas Aquaman actually went and did it, as far as the law is concerned, yet there is only silence. Aquaman just can’t catch a break.

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On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back. The authors speak only for themselves, and nothing on this blog is to be considered the opinions or views of the authors’ employers.